Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. A55414, Laura J. Birkmeyer, Judge. Dismissed as moot.
HALLER, J.
T.M. (Mother) filed an appeal challenging the trial court's order terminating her parental rights over her daughter A.W. (A.). The petition to declare A. free from Mother's custody and control based on abandonment was brought by the fiancée of A.'s father, K.M. (Fiancée). Mother does not challenge the trial court's abandonment finding. Instead, she asserts that because Fiancée is not married to A.'s father, Fiancée cannot adopt A. and thus Fiancée had no standing to bring the petition to terminate parental rights. Mother did not raise this standing challenge in the proceedings before the trial court.
After the completion of briefing on appeal, Fiancée moved to dismiss Mother's appeal as moot because A.'s father and Fiancée now have a child together, a fact which makes Fiancée statutorily eligible to adopt A. At oral argument, Mother agreed that the birth of A.'s half-sibling makes Fiancée eligible to adopt A. and thus confers standing on Fiancée at a termination proceeding. Nevertheless, Mother asks that we address the issue of Fiancée's standing at the time of the proceedings before the trial court as an issue of public concern. We decline Mother's request and dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
C.W. (Father) and Mother met in high school and were in a relationship for several years. Mother became pregnant in July 2002, and A. was born in March 2003. At some point Mother and Father's relationship ended, and Father and Fiancée began their relationship. For the first six months after her birth, A. lived with Mother and was cared for by Mother, Father's mother, and Father. In September 2003, A. lived for three months with Father's parents in Texas, and in December 2003 returned to San Diego to live with Father and Fiancée. Mother, who has a history of substance abuse, was incarcerated at this time. Since December 2003, Fiancée has cared for A. at home on a full-time basis while Father is at work.
In 2004, Father and Mother participated in proceedings before the family law court to resolve custody and visitation issues. The court ruled that Father was to have sole legal custody and that A.'s primary residence be with Father. Mother was granted supervised visitation, on the condition that she attend counseling, Narcotics Anonymous meetings, and parenting classes. However, for the next three years the visitation plan was not utilized. Mother periodically sent cards and gifts to A., but she saw A. only once in 2005 or 2006 and once in 2007. According to Mother, she complied with the court-ordered visitation conditions, but Father refused to cooperate with visitation. Mother stated that she decided not to fight Father in court until she had completed a three-year probation she had received for a criminal conviction and she had "gather[ed] [her]self both emotionally [and] financially." According to Father, Mother asked to visit A. on a couple of occasions but he did not allow the visits because she had not complied with the court's orders. Mother never paid child support. Mother claimed she would have been willing to do so but Father stated he did not want her money.
These two contacts occurred when Father's brother brought A. to Mother's place of work, and when Mother coincidentally was at the same apartment complex where A.'s babysitter had gone with A. to visit a friend.
In November 2007, Mother filed a petition requesting another visitation order. The Family Court Services counselor who met with the parties noted that Mother had only met with A. briefly on two occasions since 2004. The counselor recommended that Mother complete a substance abuse program; that A. participate in counseling; and that Mother be provided contact during counseling sessions at the child's therapist's discretion. Father opposed Mother's visitation request and objected to the counselor's recommendation. Father contended that Mother had failed to comply with the court's conditions for visitation and failed to maintain contact with A.; A. viewed Fiancée as her mother; and it would be harmful and confusing to A. (who was then almost five years old) to undergo counseling to try to establish a relationship with Mother. In March 2008, the family law court ordered that Mother enroll in counseling, submit to drug testing, and attend Narcotics Anonymous meetings. The court retained jurisdiction over Mother's contact with the child. Pursuant to the court's order, Mother underwent drug testing (testing negatively) and in April 2008 started counseling.
In June 2008, Mother filed a renewed motion for visitation. On August 12, 2008, the family law court found that Mother was in compliance with the court's conditions for visitation, and ruled that she should have four hours of professionally supervised weekly visitation. On August 13, 2008, Mother attended an orientation for the professionally supervised visitation, but Father did not attend.
Meanwhile, on August 5, 2008, Fiancée filed a petition to declare A. free from Mother's custody and control based on abandonment. Fiancée declared that she was engaged to be married to Father; that she has been the primary caregiver for A. since December 2003; and that she was seeking to adopt A. Mother opposed the petition, but did not raise the issue of Fiancée's standing. The Health and Human Services Agency social worker recommended that the petition be granted. The social worker stated that Mother only had two "token contacts" with A. since September 2003; Mother had failed to provide financial support for A.; A. referred to Fiancée as "mom"; and A. did not know Mother. The social worker noted that the petition to declare A. free from Mother's custody and control had been filed "as a companion to an Independent Adoption," and that "[Fiancée] and [Father] are seeking termination of [Mother's] parental rights in order to complete an Independent Adoption." The social worker opined that the evidence showed Mother intended to abandon her daughter and that adoption was in the child's best interest.
At the December 2008 hearing on Fiancée's petition, Fiancée stated that she and Father intended to marry "in the next year" and that they had been waiting for financial reasons.
Mother and Fiancée testified at a December 2008 hearing on Fiancée's petition. The trial court took judicial notice of the proceedings in the family law court concerning custody and visitation. After considering the matter, the trial court granted Fiancée's petition to free A. from Mother's custody and control based on abandonment. (Fam. Code, § 7822, subd. (a)(3).) The trial court stated that although Mother testified she did not intend to abandon her daughter while she was "trying to clear up things in her own life[,]" she had in fact abandoned A. during this time period, Fiancée had taken on the role of mother to A., and A. did not recognize Mother as her mother. The court ruled that Mother had left A. in the care and custody of Father for a period of at least one year without any provision for support, without communication, and with the intent to abandon the child, and that it was in A.'s best interest to be freed from Mother's custody and control.
Subsequent statutory references are to the Family Code.
DISCUSSION
Mother contends that because Fiancée was not married to Father she was not among the individuals identified in section 8802 as eligible to adopt, and thus she had no standing to bring the petition to terminate parental rights. While this case was pending on appeal, Fiancée filed a motion to dismiss the appeal because she had given birth to A.'s half-sibling, a development that Mother acknowledges makes Fiancée statutorily eligible to adopt A. (See § 7841 [interested persons, including persons filing adoption petition, may petition to terminate parental rights]; § 8802, subd. (a)(1)(A) [adult related to child's half-sibling by blood may petition to adopt].)
An appeal is moot when the occurrence of an event makes it is impossible for the appellate court to grant the appellant relief. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) If the appellate decision cannot affect the outcome of the case in a subsequent proceeding, the appeal is moot. (Id. at p. 1055; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) Were we to reverse and remand the case to the trial court, Fiancée would have standing to bring the termination petition because she is eligible to adopt A. given her status as the mother of A.'s half-sibling. Thus, we cannot afford Mother effective relief, and her appeal is moot.
Mother nevertheless requests that we address the issue of Fiancée's standing prior to the birth of the half-sibling because it is a matter of public concern. As a general rule, appellate courts decide only actual controversies and hence dismiss cases where the issues are moot. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) As an exception to this general rule, an appellate court may exercise its discretion to consider a moot issue if it is of broad public interest and is likely to reoccur. (Ibid.)
There is no showing the standing issue raised by Mother arises frequently in the trial courts so as to require appellate guidance. Indeed, in the proceedings below, Mother did not even raise the issue of Fiancée's standing. Moreover, under the circumstances of this case, if Mother had raised the issue below it could have readily been resolved by the trial court. Although Father was not named in the termination petition, the record reflects that Fiancée and Father were seeking termination of Mother's parental rights in order to pursue the adoption. The social worker's report states that Fiancée and Father were seeking termination of parental rights to complete the independent adoption. At the termination hearing, Fiancée's attorney referred to Fiancée and Father collectively as "petitioners" even though Father was not actually named as a party in the termination petition. If the issue had been raised below, Father, who was present at the termination hearing, could have formally joined in the termination petition. Mother does not dispute that Father has standing to petition to terminate her parental rights.
Because the record does not show that this case raises an issue of public concern that is likely to reoccur, we decline Mother's request that we evaluate the issue of Fiancée's standing notwithstanding its mootness.
DISPOSITION
The appeal is dismissed as moot.
WE CONCUR: NARES, Acting P. J., O'ROURKE, J.